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TMI Blog2004 (11) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons aforementioned we direct that the Order of the Governor sanctioning prosecution should be given effect to and that of the Council of Ministers refusing to do so may be set aside. The Court shall now proceed with the prosecution. As the case is very old, we request the Court to dispose off the case as expeditiously as possible. - Appeal (civil) 7256-57 of 2004 [Arising out of SLP (C) Nos. 7697-7698 of 2003] - - - Dated:- 5-11-2004 - N. Santosh Hegde, S. N. Variava, Bisheshwar P. Singh, Hotoi Khetoho Sema And S. B. Sinha,JJ. JUDGMENT S. N. Variava, J. Leave granted. These Appeals are against the Judgment of the Madhya Pradesh High Court dated 10th January, 2003. Briefly stated the facts are as follows: Respondents No. 4 (in both these Appeals), i.e. Rajender Kumar Singh and Bisahu Ram Yadav, were Ministers in the Government of M. P. A Complaint was made to the Lokayukta against them for having released 7.5 acres of land illegally to its earlier owners even though the same had been acquired by the Indore Development Authority. After investigation the Lokayukta submitted a report holding that there were sufficient grounds for prosecuting the two Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration is whether a Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of Ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code. As this question is important, by Order dated 12th September, 2003 it has been directed that these Appeals be placed before a Bench of five Judges. Accordingly these Appeals are before this Bench. Article 163 of the Constitution of India reads as follows: "163. COUNCIL OF MINISTERS TO AID AND ADVISE GOVERNOR.- (1) There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sixth Schedule and Articles 371A(1)(b), 371A(1)(d) and 371A(2)(b) and 371A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this connection, reference may be made to Article 356 which states that the Governor can send a report to the President that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. Again Article 200 requires the Governor to reserve for consideration any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution. 55. In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President and Governor in India: "Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course a highly improbable contingency or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent"." Thus, as rightly pointed out by Mr. Sorabjee, a seven Judges Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is however clarified that the exceptions mentioned in the Judgment are not exhaustive. It is also recognized tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs a bias in favour of the respondents and against a complainant would be manifestly inherent, apparent and implied in the mind of the Law Minister, then in that event, he would not be entitled to consider complainant s application and on the equal footing even the other Ministers may not be qualified to do so and the learned counsel further expressly submitted that in such an event, it would only the Governor, who on his own, independently, will be entitled to consider that question." The State of Maharashtra sought Special Leave to Appeal to this Court, under Article 136 of the Constitution of India, against that portion of the Judgment which directed the Governor of Maharashtra to exercise his individual discretion. Before this Court it was argued that the High Court could not have decided that the Governor should act in his individual discretion and without the aid and advice of the Council of Ministers. It was submitted that under Article 163(2) if a question arose whether any matter was or was not one in which the Governor was required to act in his discretion, it was the decision of the Governor which was to be final. It was also submitted that under Article 163(3) any adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o advance the cause of justice as it was rightly thought that in deciding to sanction or not to sanction the prosecution of a Chief Minister, the Governor would act in the exercise of his discretion and not with the aid and advice of the Council of Ministers. The application for grant of special leave is, therefore, dismissed." (Emphasis supplied) As has been mentioned above, the Division Bench had noted this case. The Division Bench however held that even though this principle may apply to the case of a Chief Minister it cannot apply to a case where Ministers are sought to be prosecuted. We are unable to appreciate the subtle distinction sought to be made by the Division Bench. The question in such cases would not be whether they would be bias. The question would be whether there is reasonable ground for believing that there is likelihood of apparent bias. Actual bias only would lead to automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias has now taken a tilt to real danger of bias and suspicion of bias . [See Kumaon Mandal Vikas Ninag Ltd. vs. Girja Shankar Pant and Others report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney-General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. 16. The members of the sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disable itself or disentitles itself. Mr. Tankha, on behalf of the Ministers, submitted that a case of Chief Minister would be completely different from that of Ministers. He submitted that in this case the Council of Ministers had considered all the materials and had applied their minds and come to the conclusion that sufficient material to grant sanction was not there. He submitted that the Governor was not an Appellate Body and he could not sit in Appeal over the decision of the Council of Ministers. He submitted that the decision of the Council of Ministers could only have been challenged in a Court of Law. Mr. Tankha submitted that the theory of bias cannot be applied to the facts of this case. In support of his submission, he relied upon the case of V.C. Shukla vs. State (Delhi Administration), reported in (1980) Supp. SCC 249, wherein the vires of the Special Court Act, 1979 had been challenged. Under Section 5 of the Special Court Act, sanction had to be granted by the Central Government. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the conclusion becomes inescapable. Mr. Tankha is not right when he submits that the Governor would be sitting in Appeal over the decision of the Council of Ministers. However, as stated above, unless a situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. Taking a cue from Antulay, it is possible to contend that a Council of Ministers may not take a fair and impartial decision when his Chief Minister or other members of the Council face prosecution. But the doctrine of apparent bias , however, may not be applicable in a case where a collective decision is required to be taken under a statute in relation to former ministers. In a meeting of the Council of Ministers, each member has his own say. There may be different views or opinions. But in a democracy the opinion of the majority would prevail. Mr. Soli J. Sorabjee has not placed any material to show as to how the Council of Ministers collectively or the members of the Council individually were in any manner whatsoever biased. There is also no authority for the proposition that a bias can be presumed in such a situation. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in me u/s 4(1) of the M.P. Special Police Establishment Act, I direct the D.G. (SPE) to register and investigate an offence against Shri B.R. Yadav, Minister, Shri Rajendra Kumar Singh, Minister and Shri R.D. Ahirwar the then Additional Secretary under relevant provisions of the P.C. Act, 1988 and I.P.C. It is also directed that investigation in this case will be done by an officer not below the rank of S.P. The entire record be transferred to the SPE Wing." The Office of the Lokayukta was held by a former Judge of this Court. It is difficult to assume that the said High Authority would give a report without any material whatsoever. We, however, do not intend to lay down any law in this behalf. Each case may be judged on its own merits. In this case, however, we are satisfied that the Lokayukta made a report upon taking into consideration the materials which were placed or received by him. When the Council of Ministers takes a decision in exercise of its jurisdiction it must act fairly and reasonably. It must not only act within the four-corners of the statute but also for effectuating the purpose and object for which the statute has been enacted. The Respondent No. 4 in each app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted. Mr. Tankha also pressed into play the doctrine of necessity to show that in such cases of necessity it is the Council of Ministers which has to take the decision. In support of this submission he relied upon the cases of J. Mohapatra and Co. vs. State of Orissa reported in 1984 (4) SCC 103; Institute of Chartered Accountants vs. L.K. Ratna reported in 1986 (4) SCC 537; Charan Lal Sahu vs. Union of India reported in 1990 (1) SCC 613; Badrinath vs. Government of Tamil Nadu reported in 2000 (8) SCC 395; Election Commission of India vs. Dr. Subramaniam Swamy reported in 1996 (4) SCC 104; Ramdas Shrinavas Nayak (supra) and State of M. P. vs. Dr. Yashwant Trimbak reported in 1996 (2) SCC 305. In our view, the doctrine of necessity has no application to the facts of this case. Certainly the Council of Ministers has to first consider grant of sanction. We also presume that a high authority like the Council of Ministers will normally act in a bonafide manner, fairly, honestly and in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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